South African Immigration Regulations state that a parent travelling with a minor child must produce the child’s unabridged birth certificate (or adoption certificate in respect of adopted children), as well as an affidavit granting consent from the other parent reflected on the child’s birth certificate. This affidavit must explicitly grant his or her permission for the minor child to enter into or depart from the Republic of South Africa.
What happens when such consent from the other parent is withheld?
Generally speaking, travel is considered to be beneficial to the upbringing of the child, unless such travelling is dangerous (i.e. to a war-zone country) or the non-consenting parent has reason to believe the child will not return to the Republic. Judges are slightly wearier of granting consent to travel to a county which is not party to the Hague Convention on Civil Aspects of Child Abduction, however, they won’t deny an application based on speculation.
Applying for a High Court waiver
The parent who wishes to travel must then apply to the High Court for a waiver of consent to travel with the minor child. This means that an application will be brought stating that consent for the minor child to travel has been unreasonably withheld and that the Court, as Upper Guardians of all minor children, should waive the non-consenting parent’s refusal to consent. The application will first need to be endorsed by the Office of the Family Advocate before being place before the Court.
Conditions where consent is not required
Remember, this is only applicable if the other parent is named as such on the child’s birth certificate, is still alive and enjoys co-guardianship of the minor child. If you, as the parent wishing to travel, have sole guardianship of the minor child, or are the only parent named on the birth certificate, then you are free to travel without consent.
Our Family Law department deals with all legal issues affecting the family. If consent to travel with your minor child is being unreasonably withheld from your child’s other parent, contact our team of experts.
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